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Dataveillance Calls for Privacy Debate

U.S. President Obama speaks about wire tapping during a recent visit to San Jose, Calif.

The American Civil Liberties Union (ACLU) is suing the Obama administration over its collection of phone records of American citizens as part of the Patriot Act and Foreign Intelligence Surveillance Court (FISC)-based surveillance/dataveillance in the War on Terrorism. But does the ACLU have a case? George Nation, a finance and law professor at Lehigh University, weighs on the debate and says advances in technology require a new standard for privacy.

“The lawsuit is a good idea, though its success under current law is a long shot. A U.S. Supreme Court case from 1979, Smith v. Maryland, upheld the collection of similar information using a pen register. This precedent holds that the mere collection (with no trespass by the government) of metadata (the numbers dialed, the location of the phone, the duration of the call etc., but not the content of the calls) is not subject to Fourth Amendment protection. It says individuals do not have a reasonable expectation of privacy in this information because this data is knowingly revealed to third parties. For example, when I use the phone I know that this information is collected and recorded by the phone company because it is included in my billing statement. Unlike the content of the calls, which is only revealed to the parties to the conversation, there is no reasonable expectation of privacy in metadata knowingly revealed to others.

Today, this is not a very compelling argument. Even though the phone company collects this information and includes it in my bill, I do not expect the phone company to share this information with others if doing so results in the revelation of other information I reasonably expect to be private. More recently the court has shown a willingness to protect the collection of some data similar to metadata and this has led some to believe, incorrectly, that there is some protection for this type of information. In 2012, the Court decided U.S. v. Jones in which the majority held that the attachment of a GPS device to a vehicle and its use to monitor the vehicle’s movements constituted a search under the Fourth Amendment and therefore required a warrant. By analogy to the Smith case, one does not have a reasonable expectation of privacy in the movements of one's vehicle driving on public roads because this can be observed by anyone.

However, the basis of the court's holding in Smith was the actual physical trespass by the government upon Smith's car that resulted from the placement of the GPS device. It was this trespass that, for the Majority, constituted an invasion of privacy. In fact, the court has held that if this type of information may be collected without a trespass then there is no Fourth Amendment protection precisely because there is no reasonable expectation of privacy in the location of one’s car while on public roads. In the current situation involving phone records there has been no trespass. The only issue is whether there is a reasonable expectation of privacy in metadata, and the answer under current law is no.

The Smith case was decided in 1979 and while 34 years is not necessarily a long time in the law, it is an eternity as far as technological advances are concerned. Today, the volume of metadata the government can collect, and the information that it can quickly glean from such data has increased dramatically. This advance in technological capability changes the Fourth Amendment analysis. Before these technological advances, the sheer cost and difficulty of collecting and analyzing all the data necessary to turn the collection of metadata into real information, gave reasonable assurance that it was not being done. In essence, I had reasonable assurance that my privacy was not compromised by revealing my metadata simply because of the expense and difficulty/impossibility of the task of collecting and analyzing the data.

Technology is so effective today that the collection of metadata may now reveal information in which a person does have a reasonable expectation of privacy. If that is the case, then the collection of this data without a warrant should represent a violation of the Fourth Amendment. Perhaps our new technological capabilities require a new legal standard for privacy. In any event, because of our recent technological advances the collection of metadata should be the subject of public debate and reconsideration by the court.”